1. When a defendant challenges the trial court's instructions to the jury but never objects at
trial to the instructions, an appellate court applies a clearly erroneous standard of review.

2. Jury instructions are clearly erroneous only if the reviewing court is firmly convinced that
there is a real possibility the jury would have rendered a different verdict if the trial error
had not occurred.

3. Under K.S.A. 22-3220, a defendant may raise a defense based on mental disease or defect
if the disease or defect was such that it could negate the mens rea element of the
crime.

4. K.S.A. 22-3221 requires that in any case in which the defense has offered substantial
evidence of a mental disease or defect excluding the mental state required as an element of
the offense charged and the jury returns a not guilty verdict, the jury shall answer the
following special question: Do you find the defendant not guilty solely because the
defendant, at the time of the alleged crime, was suffering from a mental disease or defect
which rendered the defendant incapable of possessing the required criminal intent?

5. Under State v. White, 284 Kan. 333, 346-47, 161 P.3d 208 (2007), there was
no clear
error committed by the trial court in this case in taking the verdict form in part directly
from K.S.A. 22-3221.

6. With the exception of a felony-murder case, a criminal defendant has a right to an
instruction on any lesser included offense supported by the evidence at trial as long as (1)
the evidence, when viewed in the light most favorable to the defendant's theory, would
justify a jury verdict in accord with the defendant's theory, and (2) the evidence at trial
does not exclude a theory of guilt on the lesser offense. If, however, from the evidence the
jury could not have reasonably convicted the accused of the lesser offense, then an
instruction on a lesser included offense is improper.

7. A lesser included offense is a crime where all elements of the lesser crime are identical to
some of the elements of the crime charged.

8. In a prosecution for battery of a correctional officer under K.S.A. 21-3413(a)(3), a lesser
included offense instruction for battery is unwarranted where the evidence is undisputed
that the victim was a state correctional officer or employee engaged in the performance of
the officer's or the employee's duties when struck by the defendant inmate.

GREEN, J.: Charles Hunter appeals from his jury trial conviction and sentence for battery
of a law enforcement officer in violation of K.S.A. 21-3413(a)(3). First, Hunter contends that the
trial court committed clear error based on the verdict form used in instructing the jury to consider
Hunter's defense of his mental disease or defect. We disagree. Based on the record in this case and
under our Supreme Court's decision in State v. White, 284 Kan. 333, 346-47, 161
P.3d 208
(2007), we find no clear error committed by the trial court in taking the verdict form in part
directly from K.S.A. 22-3221.

Next, Hunter argues that the trial court violated his constitutional rights by not instructing
the jury on the lesser included offense of battery. We again disagree. Because the evidence
introduced at trial excluded a theory of guilt on the lesser included offense of battery, an
instruction on battery would have been improper in this case. Finally, Hunter contends that the
trial court erred in using his criminal history to increase his sentence. Nevertheless, Hunter
concedes that this issue has been decided adversely to his position in State v. Ivory,
273 Kan. 44,
41 P.3d 781 (2002). Accordingly, we affirm.

Hunter has been incarcerated in various correctional facilities since 1978. When the
incident occurred in this case, Hunter was incarcerated at Larned State Correctional Facility.
Hunter had been diagnosed with schizophrenia paranoid type and had suffered for many years
from delusions that the devil was after him. Hunter had also been diagnosed with antisocial
personality disorder and had a history of violence during his incarceration. Before the incident,
Hunter had taken several different medications for his mental health issues.

On the afternoon of March 23, 2005, Eric Fox, an activity therapist at Larned, was closing
down activities for the day when Hunter took off his shoes and threw them in the equipment
room. One of Hunter's shoes struck Fox in the leg. Fox asked Hunter to pick up his shoes, but
Hunter would not move. When Corrections Officer Shannon Herdt saw what had happened,
Herdt came down the hallway and asked Hunter several times to put away his shoes to no avail.
Herdt then ordered Hunter to put away his shoes. Nevertheless, Hunter refused to comply with
Herdt's order.

Corrections Officer Robert Witt, who was the yard officer that day, came inside, got close
to Hunter, and told him that activities were over and that he needed to pick up his shoes. Hunter
responded to Witt's request by calling him names. Witt testified that Hunter was in a provoked
state and that he had never seen Hunter so angry. At that point, a call for officer assistance was
made. Hunter removed his belt and hit Witt between his eyes with the metal end of his belt. Witt
immediately began bleeding. Witt attempted to wipe the blood from his eyes and hold Hunter off
of him, but Hunter was able to hit him several times on the side of his head. Witt fell to the floor,
and Hunter tried to kick him in the head. Witt was able to block Hunter's kick with the back of his
shoulder. The officers took Hunter to the ground. Hunter was handcuffed and taken immediately
to the segregation unit.

Kimberly Ramsey was a corrections officer who delivered property to Hunter
approximately 1 hour after the incident. According to Ramsey, Hunter was very calm and stated
that he hoped he was taken downtown and charged for hitting Witt. Hunter told Ramsey that he
was tired of dealing with people at Larned and that he did not want it to end up as a disciplinary
report.

Timothy Easley, an investigator at Larned, was in the segregation unit approximately 1
week after the incident when Hunter stopped him and asked to talk with him. Easley testified that
Hunter stated that he threw his shoes on March 23, 2005, because he was angry that the activities
department was closing. According to Easley, Hunter stated that he refused to pick up his shoes
to show he was rebelling because the activities time had ended. Hunter told Easley that he became
more and more angry and that he snapped when the call for officer assistance was made. Hunter
further told Easley that he was working with the mental health staff on his anger issues.

Hunter was charged with battery of a law enforcement officer in violation of K.S.A. 2004
Supp. 21-3413(a)(2); see K.S.A. 21-3413(a)(3). The trial court entered an order for evaluation of
competency and mental examination under K.S.A. 22-3219 and K.S.A. 22-3302. After the
evaluation had been completed, the trial court found that Hunter was competent to stand trial.

Hunter's defense at trial was that he suffered from a mental disease or defect that rendered
him incapable to form the requisite intent to commit the crime of battery of a law enforcement
officer. Hunter testified at trial that before the March 23, 2005, incident, he was very paranoid
because he thought that Satan was going to try to kill him because he had turned against Satan.
When questioned further, Hunter explained as follows:

"[B]efore I came to prison, I was speaking to some witches and this smoke come down
and they
read my palm, it said I was the chosen one. And later on I went to a little park and sat on the
merry-go-round and saw a little tiny man, of small stature talking to me and he made the
merry-go-round go around and around and around. And I liked it turning. And we went up into
the sky
and the spirit and we started talking and I met God in such a way that I saw angels. He had no
head, but I, you know, it was not a face, but actual[ly] a body and as he let me read a bible certain
scriptures and things were actually happened as I was reading. For example, I saw a beast. And
when I looked there was a beast coming up out of the top of the water, but to make a long story
short, me and Satan was talking and he knew I was going to go to prison.

"So, he asked me what would my number be and I told him 37366. He mumbled
real
soft 666. I said no, 37366. So, they arranged for me to have a prison number and Satan read the
scripture. And then there was a serpent and the serpent said I would turn on him. Then I said
what do you mean? He said it is going to turn on you. He said what's going to turn on me. I said I
don't know. I didn't know.

"And later on I find out that before I went to prison, I read a scripture and as to
when I
left, in the end sayeth the Lord, and more on that day, in that moment if I was to turn over and
over and over again. And should be no mortal till he comes. I would give him–he was
talking
about this situation in my life, like prison and so on and so forth."

Hunter testified that before the incident on March 23, 2005, he was having problems with
"the devil" and with people that he sensed were the devil's "servants." Just before the incident,
Fox had noticed that Hunter was walking rapidly around the activities square. According to
Hunter, when he was pacing in the square just before the incident, he was having thoughts of the
devil's force. Hunter testified that when Fox was talking to him about his shoes, he was talking to
someone else in his head and could not understand what Fox and the officers wanted him to do.
According to Hunter, when Witt appeared real close to him, he thought it was the devil.
Moreover, when the call for officer assistance was made, he thought "they" were finally going to
come get him, and so he took off his belt and tried to keep "him" back by using his belt. Hunter
testified that he thought it was the devil coming at him and fighting him.

The day following the incident, Hunter wrote a letter in which he stated: "I am the one
omen illuminati and I love you but I need to be appropriated. Sorry, but I am a god man a son of
man." Hunter signed the letter: "To Wit: Kiss, the rock group Kiss, signed the Lord our
righteousness. Dr. Rock." When asked what was "illuminati," Hunter explained that "[i]t has to do
with the symbol on the back of a dollar, sometimes refer to that as the Eye of Ra, that's my
birthmark and so on and so forth."

Jan Kolb is a mental professional who had worked with Hunter at Larned and had
evaluated Hunter 4 hours after the March 23, 2005, incident. Kolb testified that before the
incident happened on March 23, 2005, she had noticed that Hunter was beginning to struggle. In
her written evaluation, Kolb wrote that Hunter had recently been acutely psychotic and had not
returned to his previous level of functioning. Kolb also noted that Hunter appeared to be angry
due to not being released by the parole board.

Psychologist William Albott evaluated Hunter on September 29, 2006, at Larned. At trial,
Albott testified that in his professional opinion when the March 23, 2005, incident occurred,
Hunter was functioning in an acute psychotic state. The evidence at trial showed that several days
before the March 23, 2005, incident, one of Hunter's medications had been discontinued.
Moreover, the dosage of one of Hunter's psychotropic medications had been doubled. The
medication was increased because Hunter had been hearing voices, had been more delusional, and
had experienced increased agitation. Albott testified that this medication change indicated that
Hunter had been deteriorating for days preceding the incident.

Albott noted that there was a convergence of several things leading up to the March 23,
2005, incident, including the distress of his parole hearing, Hunter's deteriorating state, one of his
medications being discontinued, and Hunter's lack of sleep. Albott testified that it took very little
to push Hunter over the edge and that he had acted in a psychotic manner. Albott testified that all
of the testimony he had heard and the evidence he had reviewed supported that Hunter had
experienced a psychotic breakdown rather than a deliberate willful act on his part.

Kathy Spade testified that she had known Hunter for a long time and had worked on
Hunter's unit at the Larned State Security Hospital in the 2 months leading up to the trial. Spade
testified that Hunter was currently on 10 medications and that he was stabilized and functioning
well. Moreover, Spade testified that Hunter had not exhibited any antisocial behavior.
Nevertheless, Spade testified that even with all his medications, Hunter has a fixed delusional
process that he discusses daily. Spade explained that Hunter equates many of life's events with
good and evil and Satan and demonic delusions. According to Spade, when Hunter gets in a
paranoid state, he equates people with demons and thinks that they are out to get him.

Dr. J.L.L. Fernando, a psychiatrist who conducted Hunter's evaluation at the Larned State
Security Hospital in the last part of 2005, testified that, in his professional opinion, Hunter was
not suffering from a mental defect when the March 23, 2005, incident occurred. Dr. Fernando
explained in his evaluation report that "[a]lthough becoming angry and being of impaired
judgment could be part of a schizophrenic process, there is no indication in the description of the
incident Mr. Hunter behaved in a psychotic or demented manner although he may have had his
judgment processes compensated." Dr. Fernando concluded that Hunter did not lack the required
mental state as an element of the offense charged.

The jury found Hunter guilty of battery of a law enforcement officer. Hunter was
sentenced to a prison term of 130 months, which was to run consecutive to the prison sentence he
was currently serving. The trial court ordered Hunter to be committed to the Larned State
Security Hospital for psychiatric care, treatment, and maintenance under K.S.A. 22-3430.

I. Did the trial court err in instructing the jury on the verdict form?

First, Hunter argues that the trial court committed clear error when it instructed the jury
on the verdict form to refrain from considering his mental state during its deliberation on his guilt.
Because Hunter did not object to the verdict form, this court applies a clearly erroneous standard.
See K.S.A. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125
(2006).
"'Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a
real possibility the jury would have rendered a different verdict if the trial error had not occurred.'
[Citations omitted.]" State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).

Under K.S.A. 22-3220, mental disease or defect can be asserted as a defense to show that
the defendant lacked the mental state required for the crime charged:

"It is a defense to a prosecution under any statute that the defendant, as a result of
mental disease or defect, lacked the mental state required as an element of the offense charged.
Mental disease or defect is not otherwise a defense. The provisions of this section shall be in
force and take effect on and after January 1, 1996."

Thus, a defendant may raise a defense based on mental disease or defect "if the disease or
defect
was such that it could negate the mens rea element of the crime." State v.
Bolden, 28 Kan. App.
2d 879, 885, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001). Here, Hunter's entire
defense was
based on the mental disease or defect defense.

The jury in this case was instructed concerning evidence of mental disease or defect as it
related to the issue of whether Hunter was able to form the necessary intent to commit the
charged crime. Instruction No. 5 provided:

"Evidence has been presented that the defendant was afflicted by mental disease or
defect at the time of the alleged crime. Such evidence is to be considered only in determining
whether the defendant had the state of mind required to commit the crime. You are instructed the
defendant is not criminally responsible for his acts if because of mental disease or defect the
defendant lacked the intent to engage in the conduct."

This instruction mirrors the language of PIK Crim. 3d 54.10.

In addition, Instruction No. 6 instructed the jury where Hunter would be committed if he
was found not guilty based on his defense of mental disease or defect:

"If you find the defendant not guilty solely because the defendant at the time of the
alleged crime, was suffering from mental disease or defect which rendered the defendant
incapable of possessing the required criminal intent, then the defendant is committed to the State
Security Hospital for safe-keeping and treatment until discharged according to law."

Instruction No. 6 mirrors the language of PIK Crim. 3d 54.10-A.

Although Instruction Nos. 5 and 6 properly instructed the jury on Hunter's defense of
mental disease or defect, Hunter focuses on the verdict form that was given to the jury. The
verdict form, provided as follows:

"We the jury find the defendant guilty of battery of a law enforcement officer.

_______________

Presiding Juror

"We the jury find the defendant not guilty of battery of a law enforcement officer.

_______________

Presiding Juror

"If your verdict was not guilty, please answer the following special question: Do
you find
the defendant not guilty solely because the defendant, at the time of the alleged crime, was
suffering from a mental disease or defect which rendered the defendant incapable of possessing
the required criminal intent?

Yes ____ No _____

_______________

Presiding Juror"

This verdict form differs from that in the prior version of PIK Crim. 3d 68.06 (1996
Supp.), which recommended providing the following language to the jury concerning a not guilty
verdict:

"We, the jury, find the defendant not guilty solely because the defendant, at the
time of
the crime, was suffering from a mental disease or defect which rendered the defendant incapable
of possessing the intent required as an element of the crime.

_______________

Presiding Juror"

PIK Crim. 3d 68.06 (1996 Supp.) followed the language of PIK Crim. 3d 54.10
(Instruction No. 5 in this case) and made clear to the jury that the defendant is not guilty if it finds
that the defendant was suffering from a mental disease or defect which rendered the defendant
incapable of possessing the intent required for the charged crime.

Nevertheless, the 2007 supplement to PIK Crim. 3d 68.06 changed the recommended
language in the verdict form to the exact same language that was provided to the jury on the
verdict form in this case. Specifically, PIK Crim. 3d 68.06 (2007 Supp.) outlines the verdict form,
when a defendant claims mental disease or defect, as follows:

"We, the jury, find the defendant guilty of _________________.

_______________

Presiding Juror

"We, the jury, find the defendant not guilty of _______________.

_______________

Presiding Juror

"If your verdict was not guilty, answer the following special question:

"Do you find the defendant was not guilty solely because the defendant, at the time
of
the alleged crime, was suffering from a mental disease or defect which rendered the defendant
incapable of possessing the required criminal intent?

Yes ______ No _______

_______________

Presiding Juror"

In his appellate brief, Hunter fails to recognize the recently changed version of PIK Crim.
3d 68.06 (2007 Supp.). In accordance with PIK Crim. 3d 68.06 (2007 Supp.), the verdict form in
this case focused the jury on Hunter's mental disease or defect defense if it found Hunter not
guilty of the charged crime. Hunter maintains that the trial court's erroneous ordering of the
options on the verdict form deprived the jury of the opportunity to consider his mental disease or
defect while it was determining whether he was guilty of the charged crime. Hunter maintains that
the State further compounded the problem by its comments during closing argument.

Specifically, towards the end of its closing argument, the prosecutor told the jury that it
did not need to reach the second question unless it found him not guilty of the charged crime:

"Ladies and Gentlemen, the final thing I would like to point out to you, Ladies and
Gentlemen, is the verdict form. It is some what unique. You haven't seen this yet, but you're
going to get it in a little bit.

"Ladies and Gentlemen, I want to point out to you, that you don't even need to get
to the
second part of that question. You know, you're asked the first question, did he do it or did he not
do it. And only if you find that he did not do it, do you ever get to the second question. I would
ask that you look at the form."

Hunter argues that the prosecutor's comments, along with the verdict form, essentially
instructed the jury that it should not consider Hunter's mental state unless and until it found him
not guilty of the crime charged. The structure of the prosecutor's closing argument and the verdict
form used could be reconstructed into the following conditional syllogism:

If the jury finds the defendant not guilty of the crime charged (P), then it
should
consider whether the defendant was suffering from a mental disease or defect
which rendered him incapable of possessing the required intent (Q).

If the jury finds the defendant guilty (not P),

Then, the jury does not have to consider whether the defendant was suffering
from
a mental disease or defect which rendered him incapable of possessing the required
intent (not Q).

This conditional syllogism commits the classical fallacy known as denying the antecedent of a
conditional statement. This fallacy is committed when a statement in the conditional form "if P,
then Q" is taken to imply "if not P, then not Q." This violates the rules of deduction. See Aldisert,
Logic for Lawyers, pp. 160-63 (3d ed. 1997).

Although Hunter points out this fallacy, there are two problems with Hunter's
argument–one based on precedent and one based on the record. State v.
White, 284 Kan. 333,
346-47, 161 P.3d 208 (2007), controls the outcome of this case. In White, the jury
had been given
a special question nearly identical to the one given in the instant case. The special question was on
the second page of the verdict form. The first page of the verdict form instructed the jury that it
could find the defendant guilty of murder in the first degree, guilty of murder in the second
degree, or not guilty. The appellant in White raised a similar argument to that raised
here–that the
trial court reversed the necessary inquiry and improperly instructed the jury on the verdict form
that it only needed to consider mental disease or defect if it found the defendant "not guilty."
Because the defendant in White did not object to the instructions or verdict form at
trial, our
Supreme Court applied a clearly erroneous standard of review. 284 Kan. at 346.

In addressing the appellant's argument, our Supreme Court in White looked to
K.S.A. 22-3221, which requires a special question to be asked of the jury if it returns a "not
guilty" verdict.
K.S.A. 22-3221 provides as follows:

"In any case in which the defense has offered substantial evidence of a mental
disease or
defect excluding the mental state required as an element of the offense charged, and the jury
returns a verdict of 'not guilty,' the jury shall also answer a special question in the following
form: 'Do you find the defendant not guilty solely because the defendant, at the time of the
alleged crime, was suffering from a mental disease or defect which rendered the defendant
incapable of possessing the required criminal intent?' The provisions of this section shall be in
force and take effect on and after January 1, 1996."

Our Supreme Court pointed out that the complained-of verdict form was taken directly from
K.S.A. 22-3221. Noting that the jury had been properly instructed on mental disease or defect,
our Supreme Court further stated:

"The jury was instructed about mental disease and defect and how that could result in its
determination of not guilty. The jury was also instructed to decide on guilt: if it found White not
guilty, then it was instructed to designate whether it found him not guilty solely because of
mental disease or defect, or not, i.e., for some other, unspecified reason such as the
prosecution
failed to prove guilt beyond a reasonable doubt." 284 Kan. at 347.

Our Supreme Court held that the trial court did not err in taking its verdict form in part
directly
from K.S.A. 22-3221. 284 Kan. at 347.

Hunter maintains that this case is distinguishable from White due to the
prosecutor's
comments in closing arguments and the fact that the special question to the jury was on the same
page as the jury's verdict. Nevertheless, the prosecutor was technically correct in telling the jury
that it reached the second question on the verdict form only if it found Hunter not guilty of the
charged crime. This is exactly what the special question, which was taken from K.S.A. 22-3221,
instructed the jury to do: "If your verdict was not guilty, please answer the following special
question . . . ."

Further, Hunter takes an isolated view of the prosecutor's comments. It was clear from the
closing arguments of both the prosecutor and defense counsel that the central issue for the jury's
determination was whether Hunter suffered from a mental disease or defect that rendered him
incapable of possessing the intent to commit the charged crime. In closing arguments, the
prosecutor specifically pointed the jury to the instruction regarding mental disease or defect and
then proceeded to argue that it had proved that Hunter indeed had the requisite intent to commit
the charged crime. In light of the fact that the jury had been specifically instructed on mental
disease or defect in Instruction No. 5, there should have been no jury confusion by the
prosecutor's comments.

Hunter attempts to compare this case to State v. Graham, 275 Kan. 831, 69
P.3d 563
(2003), and State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001). Those cases,
however, are
distinguishable. Both of those cases involved instructions on lesser included offenses. The verdict
forms in Graham and Cribbs instructed each jury that if it did not find the
defendant guilty of
attempted second-degree murder, it should then consider the lesser included offense of attempted
voluntary manslaughter. Essentially, the juries in Graham and Cribbs
were both told that it did
not need to consider attempted voluntary manslaughter unless and until it agreed on whether the
defendant was guilty of attempted second-degree murder. See Graham, 275 Kan. at
386-37;
Cribbs, 29 Kan. App. 2d at 924. Different from both Graham and
Cribbs, the jury in the present
case was correctly instructed on the defense of mental disease and defect and how to use it in
determining Hunter's guilt.

Finally, the fact that the special question was present on the same page as the jury's verdict
does not change the result here. PIK Crim. 3d 58.06 (2007 Supp.) now contains the same format
as that used here. Further, as in White, Hunter had no objection to the verdict form at
trial. In
fact, the trial judge specifically pointed out the special question to the jury on the verdict form and
asked if defense counsel had any objection:

"THE COURT: Now, the other thing I want to address for the record, and I'm
sure
counsel is aware, and I know [the prosecutor] submitted a full set of instructions to the Court for
review, is the verdict form.

"[Defense counsel:] I reviewed that with the [prosecutor], Your Honor, and we
have no
objection to that.

"THE COURT: I want to cover that with [the prosecutor] as well, because there is
a
P.I.K. instruction that–or actually a P.I.K. verdict form that is identified in P.I.K., but the
problem is the statute which I believe to be controlling says that in the event a jury returns a
verdict of not guilty then a special question must be responded to by the jury to the effect of do
you find the Defendant not guilty solely because of mental defect or disease and the reason for
that. Then that's a determination as to whether or not an individual goes to State Security
Hospital.

"[Defense counsel:] I want that in there. I want that instruction in there.

"THE COURT: Okay. I'm talking about the verdict form.

"[Defense counsel:] Oh.

"THE COURT: It is the last page.

"[Defense counsel:] Okay.

"THE COURT: Do you have any objection to the verdict form?

"[Defense counsel:] No."

This colloquy between the trial judge and defense counsel demonstrates that the trial judge
made a
special effort to make defense counsel aware of the special question on the verdict form and that
defense counsel had no objection. The special question to the jury on the verdict form came
directly from K.S.A. 22-3221. Further, just like the facts of White, the record
demonstrates thatthe jury was accurately instructed about mental disease and defect and how that could
result in its
determination of not guilty (Instruction No. 5). Under White, there was no clear error
committed
by the trial court in taking its verdict form in part directly from K.S.A. 22-3221. See
White, 284
Kan. at 346-47.

Moreover, as stated earlier, the trial court specifically asked defense counsel if he had "any
objection to the verdict form?" Defense counsel said, "No." Because Hunter told the trial court
that he had no objection to the verdict form when the trial court brought the matter to his
attention, Hunter actively contributed to what he now asserts was trial error. His action is akin to
the doctrine of invited error. "A litigant may not invite and lead a trial court into error and then
complain of the trial court's action on appeal." Hebert, 277 Kan. at 78. As a result,
Hunter's
argument fails.

II. Did the trial court violate Hunter's constitutional rights by not instructing the jury
on the
lesser included offense of battery?

Next, Hunter contends that the trial court violated his right to a jury trial under the Sixth
Amendment to the United States Constitution and his right to due process under the Fifth and
Fourteenth Amendments to the United States Constitution by failing to instruct the jury on the
lesser included offense of battery.

Because Hunter never requested an instruction on battery, this court reviews for clear
error. See K.S.A. 22-3414(3); State v. Engelhardt, 280 Kan. 113, 134, 119 P.3d
1148 (2005).
When the defendant fails to request a lesser included offense instruction, the failure to give the
instruction "is clearly erroneous only if the appellate court reaches a firm conviction that, had the
instruction been given, there was a real possibility the jury would have returned a different verdict.
[Citation omitted.]" State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006).

With the exception of a felony-murder case, a criminal defendant has a right to an
instruction on all lesser included offenses supported by the evidence at trial as long as (1) the
evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury
verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a
theory of guilt on any lesser offense. If, however, from the evidence the jury could not have
reasonably convicted the accused of the lesser offense, then an instruction on a lesser included
offense is not proper. Simmons, 282 Kan. at 741-42.

A lesser included offense is "a crime where all elements of the lesser crime are identical to
some of the elements of the crime charged." K.S.A. 21-3107(2)(b). K.S.A. 21-3413(a)(3) requires
the State to prove a battery under K.S.A. 21-3412 in order for the defendant to be convicted of
battery of a correctional officer. The additional requirements to prove battery of a correctional
officer are that the State must show that the battery was committed against "[a] state correctional
officer or employee by a person in custody of the secretary of corrections, which such officer or
employee is engaged in the performance of such officer's or employee's duty." K.S.A.
21-3413(a)(3)(A).

Hunter's argument on this issue is similar to that presented in State v. Trujillo,
225 Kan.
320, 590 P.2d 1027 (1979). There, the trial court instructed the jury on battery of a law
enforcement officer under K.S.A. 21-3413 (Weeks). The appellant argued that the jury should
also have been instructed on the lesser included offense of battery under K.S.A. 21-3412 (Weeks).
Nevertheless, our Supreme Court stated that there was no issue raised at the trial concerning the
victim's identification as a police officer. The victim had been in uniform and had identified himself
to the appellant. Our Supreme Court recited the familiar rule that "[a] trial court is not required to
instruct on a lesser offense of the crime charged if the evidence at the trial excludes a theory of
guilt on the lesser offense. [Citations omitted.]" 225 Kan. at 322. As a result, our Supreme Court
found no error in the trial court's failure to instruct on the lesser included offense of battery. 225
Kan. at 322; see also State v. Whiters, No. 89,631, unpublished opinion filed
November 7, 2003
(where evidence at trial excluded appellant of being found guilty of only battery, no error in failing
to instruct on lesser included offense of battery).

In this case, there was no issue raised at trial concerning Witt's status as a correctional
officer engaged in the performance of his duties when he was hit by Hunter. The evidence showed
that Witt was a correctional officer at Larned. Hunter was incarcerated at Larned when the
incident occurred. Witt was on duty on March 23, 2005, and was engaged in the performance of
his duties when he was hit by Hunter. Because the evidence at trial excluded a theory of guilt on
the lesser included offense of battery, an instruction on battery would not have been proper in this
case. As a result, Hunter's argument on this issue fails.

III. Did the trial court err in using Hunter's criminal history to increase his
sentence?

Finally, Hunter argues that the trial court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution under Apprendi v. New
Jersey, 530
U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his criminal history that had
not been put before a jury and proven beyond a reasonable doubt to increase his sentence. Hunter
concedes that this issue is controlled by our Supreme Court's decision in State v.
Ivory, 273 Kan.
44, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent,
absent some indication the court is departing from its previous position. State v.
Singleton, 33
Kan. App. 2d 478, 488, 104 P.3d 424 (2005). Because our Supreme Court has consistently
followed its position in Ivory, we are unable to grant relief to Hunter on this issue.
See State v.
Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008).